R-01-07-26-14E5 - 7/26/2001 RESOLUTION NO. R-01-07-26-14E5
WHEREAS, the Lower Colorado River Authority desires to purchase
wastewater system assets known as the Southwest Interceptor Line and
the Round Rock South Interceptor Line Assets from the City of Round
Rock, and
WHEREAS, the City Council wishes to enter into an Agreement for
Acquisition of Wastewater System Assets (Southwest Interceptor Line and
Round Rock South Interceptor Line) with the Lower Colorado River
Authority, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Acquisition of Wastewater System
Assets (Southwest Interceptor Line and Round Rock South Interceptor
Line) with the Lower Colorado River Authority, a copy of said agreement
being attached hereto and incorporated herein for all purposes .
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended, and the Act .
0:\WPDOCS\RESOLUTI\R10726E5.WPD/Sc
RESOLVED this 26th day of July, 2001 .
Jv
4ROBT . STLUKA, JR. , Mayor
City of Round Rock, Texas
AT EST:
J NE LAND, City Secretary
2
AGREEMENT FOR ACQUISITION OF
WASTEWATER SYSTEM ASSETS
(SOUTHWEST INTERCEPTOR LINE AND
ROUND ROCK SOUTH INTERCEPTOR LINE)
THIS AGREEMENT FOR ACQUISITION OF WASTEWATER SYSTEM ASSETS (the
"Agreement") is made and entered into as of the 1"day of July, 2001 (the "Effective Date"), by
and between the LOWER COLORADO RIVER AUTHORITY, a conservation and reclamation
district and political subdivision of the State of Texas ("Buyer"), and the CITY OF ROUND
ROCK, a Texas municipal corporation ("Seller").
RECITALS
A. Seller is the owner of those certain wastewater system assets more particularly
described herein in Exhibit A(the"Southwest Interceptor Line and Round Rock South Interceptor
Line Assets").
B. Seller desires to sell and convey to Buyer and Buyer desires to purchase and acquire
from Seller the Southwest Interceptor Line and Round Rock South Interceptor Line Assets upon
the terms and conditions more particularly set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
Independent Contract Consideration stated herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE PURCHASED SOUTHWEST INTERCEPTOR LINE
AND ROUND ROCK SOUTH INTERCEPTOR LINE ASSETS
Section 1.1. Transfer of Purchased Southwest Interceptor Line and Round Rock South
Interceptor Line Assets by Seller. Subject and pursuant to the terms and conditions set forth in
this Agreement, on the Closing Date(as defined in Section 5.1 hereof), Seller shall sell to Buyer,
and Buyer shall purchase from Seller, the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets.
Section 1.2. Purchase Price and Payment. The Purchase Price (herein so called) for the
Southwest Interceptor Line and Round Rock South Interceptor Line Assets shall be as set forth
below:
A. $0 for that portion of the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets needed to provide Reserved Capacity for Round Rock as
set forth on Exhibit B; and
B. $75,319 for that portion of the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets needed to provide Reserved Capacity for Austin as set forth
on Exhibit B.
Section 1.3. Earnest Money. Upon the execution of this Agreement by all parties hereto,
Buyer shall deliver its check in the amount of Five Hundred and No/100 Dollars ($500.00)
(hereinafter called the "Earnest Money") to Seller. In the event this Agreement is closed, the
Earnest Money shall be credited to the Purchase Price. In the event this Agreement is not closed,
then the Earnest Money shall be disbursed in accordance with the terms of this Agreement.
Section 1.4. Independent Consideration. Contemporaneously with the execution of this
Agreement, Buyer hereby delivers to Seller and Seller hereby acknowledges the receipt of a check
in the amount of One Hundred and No/100 Dollars ($100.00) ("Independent Contract
Consideration"), which amount the parties bargained for and agreed to as consideration for the
Seller's grant to Buyer of Buyer's exclusive right to purchase the Southwest Interceptor Line and
Round Rock South Interceptor Line Assets pursuant to the terms hereof and for Seller's execution,
delivery and performance of this Agreement. This Independent Contract Consideration is in
addition to and independent of any other consideration or payment provided in this Agreement,
is nonrefundable under any circumstances, shall not be credited to the Purchase Price and shall
be retained by Seller notwithstanding any other provisions of this Agreement.
Section 1.5. Other Agreement. Contemporaneously with entering into this Agreement,
Buyer and Seller have also entered into that certain "Southwest Interceptor Line and Round Rock
South Interceptor Line Acquisition, Construction and Service Contract" together with the City of
Austin and the Brazos River Authority.
ARTICLE II
TITLE MATTERS
Section 2.1. Title Commitment Review. Within fifteen (15) days from the Effective
Date, the Seller, at the Buyer's sole cost and expense, shall furnish to the Buyer and Buyer's
counsel a current commitment (hereinafter called the "Title Commitment") for the issuance of an
Owner's Policy of Title Insurance to the Buyer from the Title Company, insuring such portions
of the Southwest Interceptor Line and Round Rock South Interceptor Line Assets as may be real
property or interests therein (collectively, the "Insured Property") for an amount equal to the
portion of the Purchase Price related to the Insured Property together with good legible copies of
all documents constituting exceptions to Seller's title as reflected in the Title Commitment. Buyer
shall have until thirty (30) days after receipt of the Title Commitment to review the Title
Commitment and to deliver to Seller in writing such objections as Buyer may have to anything
contained or set forth in the Title Commitment. Any items to which Buyer does not object by the
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end of said thirty (30) days shall be deemed to be "Permitted Exceptions" (herein so called). As
to items to which Buyer makes objections, Seller shall have an obligation to cooperate with Buyer
to effectuate the cure of such objections. In the event such matters are not cured prior to Closing,
Buyer shall have the right to either (1) terminate this Agreement, in which event Buyer shall
receive a full refund of the Earnest Money and neither party hereto shall owe any further
obligations one to the other hereunder, or (2) waive such title matters and proceed to Closing,
whereupon such waived title matters shall also be deemed "Permitted Exceptions."
Section 2.2. Title Policy. As soon as reasonably practical after Closing, the Seller shall
furnish the Buyer, at the Seller's sole cost and expense, with an Owner's Policy of Title Insurance
issued by the Title Company on the standard form in use in the State of Texas, insuring good and
indefeasible title to the Insured Property in the Buyer, subject only to the Permitted Exceptions
and the standard printed exceptions, except at Buyer's sole cost and expense, the exception
relating to discrepancies, conflicts or shortages in area or boundary lines, or any encroachments
or protrusions or any overlapping of improvements shall be modified to delete such exception,
except as to "shortages in area". All exceptions, conditions or requirements described in Schedule
C of the Title Commitment shall be released and/or satisfied prior to or at Closing and such items
and requirements shall not be exceptions to the Owner's Policy of Title Insurance to be provided
by Seller.
ARTICLE III
REVIEW ITEMS
Section 3.1. Review Items. Within five(5)working days after the Effective Date, Seller
shall make available for reasonable inspection and copying (at Buyer's expense) by Buyer during
normal working hours in Austin, Texas, the following (the "Review Items"):
(a) To the extent same are reasonably available to or in Seller's possession,
copies of all non-attorney client privileged books, records, operating reports,trade account
reports, accounts payable and receivable lists, vendor contracts, management agreements,
maintenance records, purchase or sale contracts, deeds, easements, licenses, permits,
certificates, soil reports, and engineering reports (including, without limitation,
endangered species, environmental and governmental inspection reports of Seller related
to the ownership or operation of the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets relating to or in respect of the physical condition or operation of
Southwest Interceptor Line and Round Rock South Interceptor Line Assets; and
(b) To the extent same are reasonably available to or in Seller's possession, a
list of all insurance policies covering or affecting the Southwest Interceptor Line and
Round Rock South Interceptor Line Assets, both casualty and liability, together with
copies of such policies.
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ARTICLE IV
REVIEW PERIOD
Section 4.1. Feasibility Review. During the period beginning on the Effective Date and
continuing until the thirtieth (30th)day following the Effective Date(the"Review Period"), Buyer
shall have the right during normal business hours and upon reasonable prior notice to Seller, to
conduct any and all reviews, investigations or examinations of the Review Items which Buyer
determines necessary in Buyer's sole and absolute discretion; provided such reviews,
investigations and examinations shall not unreasonably interfere with Seller's operation of the
Southwest Interceptor Line and Round Rock South Interceptor Line Assets. Seller may,at Seller's
option, accompany Buyer during any such inspections. Notwithstanding any provisions herein or
elsewhere to the contrary, Buyer, for any reason or no reason whatsoever, shall be entitled to
terminate this Agreement by delivering written notice of termination to Seller on or before the
expiration of the Review Period in which event this Agreement shall terminate, the Earnest
Money, if any, shall be returned to Buyer and neither party shall have any further rights or
obligations under this Agreement. The failure of Buyer to deliver written notice of termination
to Seller shall be deemed an acceptance of the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets and Review Items and a waiver of any termination rights under this
Section 4.1.
ARTICLE V
REPRESENTATIONS AND COVENANTS
Section 5.1. Representations and Warranties of Buyer. Buyer represents and warrants
to Seller that the following are true, accurate and complete as of the Effective Date: each of the
persons executing this Agreement on behalf of Buyer is duly authorized to do so; Buyer has full
right and authority to enter into this Agreement and to consummate the transaction described in
this Agreement; this Agreement constitutes the valid and legally binding obligations of Buyer and
is enforceable against Buyer in accordance with its terms; and neither the execution or delivery
of this Agreement nor the performance of Buyer's obligations under this Agreement violates, or
will violate, any contract or agreement to which Buyer is a party or by which Buyer is otherwise
bound.
Section 5.2. Seller's Representations and Warranties. Seller represents and warrants to
Buyer that the following are true, accurate and complete, as of the Effective Date: each of the
persons executing this Agreement on behalf of Seller is duly authorized to do so; Seller has full
right and authority to enter this Agreement and to consummate the transaction described in this
Agreement; this Agreement constitutes the valid and legally binding obligation of Seller, and is
enforceable against Seller in accordance with its terms, subject to applicable law; and neither the
execution or delivery of this Agreement nor the performance of Buyer's obligations under this
Agreement violates, or will violate, any contract or agreement to which Buyer is a party or by
which Buyer is otherwise bound.
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Section 5.3. Covenants. In addition to Seller's and Buyer's other agreements and
undertakings hereunder, Seller and Buyer hereby covenant and agree with each other that:
(a) Notices Received. Seller,at its sole cost and expense, will promptly deliver
to the Buyer copies of any written notices or promptly inform Buyer of any other notices
received or of which Seller gains actual knowledge and possession alleging the occurrence
of any default or alleged default under any of the Contracts, or any violation or alleged
violation of any law, regulation, order or other requirement of any governmental authority
having jurisdiction over the Southwest Interceptor Line and Round Rock South Interceptor
Line Assets.
(b) Liens. Claims. Encumbrances and Agreements. Except as otherwise
disclosed to Buyer in the Permitted Exceptions or in Exhibit C hereto, no portion of the
Southwest Interceptor Line and Round Rock South Interceptor Line Assets shall be subject
at the Closing to any liens, claims or encumbrances or any agreements, including any
management agreement or understanding respecting the Southwest Interceptor Line and
Round Rock South Interceptor Line Assets, so that Buyer shall receive all of the Southwest
Interceptor Line and Round Rock South Interceptor Line Assets free and clear of any such
liens, claims or encumbrances or any agreements, including any management
agreement(s).
Section 5.4. Closing_Updates.
(a) At Closing, Seller shall provide to Buyer a Seller Closing Certificate (so
called herein) which shall certify, represent and warrant to Buyer, as of the date of Closing
that (i) each and every of the covenants contained in Section 5.3(a), (b), and (c) of this
Agreement has been fully satisfied, and (ii) each and every of the representations and
warranties contained in Sections 5.2 and 7.5 of this Agreement are and continue to be true
and correct on the date of Closing, provided, should an event occurring during the
pendency of this Agreement make any of such representations and warranties not correct
on the date of Closing, such non-compliance shall be indicated and described on the Seller
Closing Certificate. The obligation of the Buyer to close this transaction is expressly
conditioned upon the representations and warranties contained in Sections 5.2 hereof being
true and correct on the date of Closing and the covenants contained in Section 5.3(a), (b)
and (c) hereof being fully satisfied on the date of Closing.
(b) At Closing, Buyer shall provide to Seller a Buyer Closing Certificate (so
called herein)which shall certify, represent and warrant to Seller, as of the date of Closing
that each and every of the representations and warranties contained in Section 5.1 of this
Agreement are and continue to be true and correct on the date of Closing, provided, should
an event occurring during the pendency of this Agreement make any of such
representations and warranties not correct on the date of Closing, such non-compliance
shall be indicated and described on the Buyer Closing Certificate. The obligation of the
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Seller to close this transaction is expressly conditioned upon the representations and
warranties contained on Section 5.1 hereof being true and correct on the date of Closing.
ARTICLE VI
CASUALTY PRIOR TO CLOSING
Section 6.1. Casualty.alto. In the event the Southwest Interceptor Line and Round Rock
South Interceptor Line Assets or any of them should be damaged by any casualty prior to Closing,
and the cost of repairing such damage, as estimated by an engineer, architect or contractor
retained by the Buyer and mutually agreeable to Buyer and Seller, is:
(a) less than or equal to TEN THOUSAND AND N01100 DOLLARS
($10,000.00), then the Seller shall, at Seller's sole cost and expense, repair such damage
as promptly as is reasonably possible, restoring the damaged property at least to its
condition immediately prior to such damage; and in such event, the Buyer may elect to
defer Closing until such repair is made, or the Buyer may elect to close and have the Title
Company temporarily withhold from Seller One Hundred Fifty Percent (150%) of the
funds necessary to make such repairs until the Seller has repaired such damage pursuant
to the provisions hereof; or if said cost is
(b) morethan TEN THOUSAND AND N01100 DOLLARS($10,000.00),then
the Buyer may elect to terminate this Contract whereupon Buyer shall be provided a full
refund of the Earnest Money. If the Buyer does not so elect to terminate this Contract,
then the Closing shall occur as scheduled, whereupon the Seller shall pay to the Buyer, at
Closing, any funds actually received in replacement of the damaged property by Seller as
insurance proceeds relating to such casualty, and the sale shall be closed without the Seller
repairing any such damage.
ARTICLE VII
CLOSING
Section 7.1. Time and Place of Closing. The Closing Date shall be October 1, 2001,
or(ii) such other date as may be agreed to in writing between the parties or as provided in Section
7.2 below. The Closing of the transaction contemplated by this Agreement (the "Closing") shall
be held at 10 a.m., local time on the Closing Date, at the offices of Seller in Round Rock, Texas,
or at such other date, time and place as may be mutually agreed upon in writing by the parties.
All matters to take place at the Closing shall take place simultaneously, and no delivery shall be
considered to have been made until all such proceedings have been completed.
Section 7.2. Conditions to Closing. Notwithstanding anything in this Agreement to the
contrary, it is specifically agreed that neither Seller nor Buyer shall be under any obligation to
close the transaction(s), or any portion thereof, contemplated by this Agreement, until Buyer has
been able to issue, sell, deliver and receive payment for its bonds or other debt obligations in an
amount sufficient to provide Buyer with the funds necessary to pay the Purchase Price. If these
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amount sufficient to provide Buyer with the funds necessary to pay the Purchase Price. If these
conditions have not occurred by the Closing Date, the Closing Date shall be extended for a
reasonable period of time in order to allow the unresolved condition to be satisfied.
Section 7.3. Seller Delivery. At the Closing, Seller shall deliver or cause to be delivered
to Buyer, at Seller's sole cost and expense, each of the following items:
(a) A deed with special warranty duly executed and acknowledged by Seller,
and in form for recording, conveying title in any easements or real property to Buyer
subject only to Permitted Exceptions (collectively, the "Deed").
(b) A Bill of Sale and Assignment ("Assignment") duly executed and
acknowledged by Buyer and Seller, transferring and assigning to Buyer without warranty
or recourse the portion of the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets consisting of personal property, facilities or improvements and
providing for Buyer's assumption of all of Seller's obligations and liabilities under or
related thereto. The Assignment shall further include Seller's covenant to reasonably
cooperate with Buyer to secure performance by any warrantor or contractor for any work
which the Buyer believes should be performed by any warrantor or contractor pursuant to
any assigned guaranties or warranties.
(c) An affidavit in the form acceptable to Title Company from Seller pursuant
to Section 1445 of the Internal Revenue Code and/or applicable regulations relating thereto
stating (a) that Seller is not a foreign person, (b) the Seller's name, U.S. taxpayer
identification number and address (home address for individuals, office address for
entities), and (c) such other information as may be required by Section 1445 of the Code
or the Regulations thereunder. An executed counterpart of this affidavit may be furnished
to the Internal Revenue Service at or following Closing.
(d) The Seller Closing Certificate in form specified in Section 5.4(a) duly
executed and acknowledged by Seller.
(e) A secretary's certificate and corporate resolution indicating that Seller has
all requisite power and authority to own and convey the Southwest Interceptor Line and
Round Rock South Interceptor Line Assets, that all requisite corporate consents and
approvals have been obtained and that the person executing the documents in furtherance
of this Agreement has all requisite authority to do so.
(f) An updated Title Commitment revised to show only the Permitted
Exceptions in the form specified in Section 2.1 hereof and evidence of the deposit with the
Title Company of the applicable premium for the Owner Policy.
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(g) An affidavit(s) as to debts and liens in the form customarily used by the
Title Company, addressed to each of Buyer and the Title Company, and executed by
Seller, if applicable.
(h) Any other additional documents and instruments as in the mutual opinion
of Buyer's counsel and Seller's counsel are reasonably necessary to the proper
consummation of this transaction.
(i) All combinations to all locks related to the Southwest Interceptor Line and
Round Rock South Interceptor Line Assets.
Section 7.5. Buyer Delivery. At the Closing, Buyer shall deliver to Seller the following
items:
(a) Buyer's Closing Certificate pursuant to Section 5.4(b) of this Agreement.
(b) A corporate resolution indicating the Buyer has all requisite power and
authority to own and/or lease the Southwest Interceptor Line and Round Rock South
Interceptor Line Assets, that all requisite corporate consents and approvals have been
obtained and that the person executing the documents in furtherance of this Agreement has
all requisite authority to do so.
(c) The Purchase Price in the amount and manner specified in Section 1.2
hereof.
(d) Such evidence or documents as may reasonably be required by the Seller
or the Title Company evidencing the capacity of Buyer to close the transaction and the
authority of the person or persons who are executing the various documents on behalf of
the Buyer in connection with the sale of the Southwest Interceptor Line and Round Rock
South Interceptor Line Assets.
(e) Buyer may also execute the Deed and the Assignment as appropriate.
(f) Any other additional documents or instruments as in the mutual opinion of
Buyer's counsel and Seller's counsel are reasonably necessary to the proper consummation
of this transaction.
Section 7.6. Possession. Possession of the Southwest Interceptor Line and Round Rock
South Interceptor Line Assets shall be delivered to Buyer by Seller at the Closing.
Section 7.7. Reporting Person. Each of Seller and Buyer hereby designates the Title
Company as the "Reporting Person" as such term is utilized in Section 6045 of the Code and
regulations thereunder. Seller agrees to provide the Title Company with such information as may
be required for the Title Company to file a Form 1099 or other required form relative to the
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Closing with the Internal Revenue Service. A copy of the filed Form 1099 or other filed form
shall be provided to Seller and Buyer simultaneously with its being provided to the Internal
Revenue Service.
Section 7.8. Costs and Expenses. All costs and expenses in connection with the
transaction contemplated by this Agreement shall, except as otherwise expressly provided herein,
be borne by Seller and Buyer in the manner in which such costs and expenses are customarily
allocated between the parties at closings of the purchase or sale of real property in the Austin,
Texas area.
ARTICLE VIII
REMEDIES
Section 8.1. Buyer's Remedies. Notwithstanding any provision of this Agreement to the
contrary, in the event Seller fails or refuses to timely comply with Seller's obligations hereunder
or at Closing, any of Seller's representations, warranties or covenants contained herein is not true
or has been breached or Seller enters into any contracts prior to the Closing Date to which Buyer
timely objects, Buyer shall have the following remedies as Buyer's sole and exclusive remedies:
(i) to enforce this Agreement by specific performance, mandamus or similar remedy, (ii) to
terminate this Agreement by giving Seller written notice of such election prior to or at Closing and
thereupon this Agreement shall terminate and Seller and Buyer shall be relieved and released of
all obligations and claims and liabilities hereunder and Buyer shall receive a full and prompt
refund of the Earnest Money; or (iii) to waive prior to or at Closing as applicable, the applicable
objection or condition and proceed to close the transaction contemplated hereby in accordance with
the remaining terms hereof.
Section 8.2. Seller's Remedies. Notwithstanding any provision of this Agreement to the
contrary, in the event Buyer fails or refuses to timely comply with Buyer's obligations hereunder
or is unable to do so as a result of Buyer's acts or failure to act, Seller may terminate this
Agreement and as Seller's sole remedy retain the Earnest Money as liquidated damages and not
a penalty in full satisfaction of Seller's claims against Buyer. Seller and Buyer agree that it is
difficult to determine the actual amount of Seller's damages arising out of Buyer's breach, but the
amount of liquidated damages is a fair estimate of those damages and has been agreed to by the
parties in a sincere effort to make the damages certain.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Notices. All notices and other communications hereunder shall be in
writing and shall be delivered by hand delivery, expedited courier delivery or mailed (if mailed,
by registered or certified mail, return receipt requested, postage prepaid) addressed as follows,
and shall be effective upon actual delivery if delivered by hand or by expedited courier delivery
or, if mailed, three days after deposit in the United States mail:
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(a) If to Buyer, to:
Randy J. Goss, P.E.
Executive Manager, Water and Wastewater Utility Services
LCRA
P. O. Box 220
Austin, Texas 78767-0220
(512) 473-3586
Fax: (512) 473-3551
With a copy to:
Ronald J. Freeman
Law Offices of Ronald J. Freeman
2304 Hancock, Suite 6
Austin, Texas 78756
Fax: (512) 453-0865
(b) If to Seller, to:
Mr. Bob Bennett
City Manager
City of Round Rock
221 East Main Street
Round Rock, TX 78664
Fax: (512) 218-7097
With a copy to:
Stephan L. Sheets
Brown McCarroll &Sheets Crossfield
309 East Main
Round Rock, Texas 78664
Fax: (512) 255-8986
Any party may change its address for receiving notice by giving notice of a new address in the
manner herein provided; however, if mailed, notice of such new address will be effective only
upon actual receipt by the other party.
Section 9.2. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.
Section 9.3. Assi nment. Assignments of this Agreement by the parties are prohibited
without the prior written consent of the other party, which consent shall not be unreasonably
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withheld or delayed. This Agreement shall be binding upon and inure to the benefit of the parties
thereto, their successors and assigns.
Section 9.4. Governing Law and Forum. T H I S A G R E E M E N T S H A L L B E
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE
OF TEXAS AND THE OBLIGATIONS OF THE PARTIES HERETO ARE AND SHALL BE
PERFORMABLE IN THE COUNTY WHEREIN THE PROPERTY IS LOCATED. BY
EXECUTING THIS AGREEMENT, EACH PARTY HERETO EXPRESSLY (a) CONSENTS
AND SUBMITS TO PERSONAL JURISDICTION AND VENUE CONSISTENT WITH THE
PREVIOUS SENTENCE, (b)WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ALL CLAIMS AND DEFENSES THAT SUCH JURISDICTION AND VENUE ARE NOT
PROPER OR CONVENIENT, AND (c) CONSENTS TO THE SERVICE OF PROCESS IN
ANY MANNER AUTHORIZED BY TEXAS LAW.
Section 9.5. No Oral Modification. This Agreement may not be modified or amended,
except by an agreement in writing signed by both the Seller and the Buyer.
Section 9.6. No Oral Waiver. The parties may waive any of the conditions contained
herein or any of the obligations of the other party hereunder, but any such waiver shall be
effective only if in writing and signed by the party waiving such conditions or obligations.
Section 9.7. Time of Essence. Time is of the essence of this Agreement.
Section 9.8. Total Agreement. This Agreement, including the Exhibits hereto,
constitutes the entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of the parties in
connection therewith. No representation, warranty, covenant, agreement or condition not
expressed in this Agreement shall be binding upon the parties hereto or shall affect or be effective
to interpret, change or restrict the provisions of this Agreement.
Section 9.09. Partial Invalidity. If any clause or provision of this Agreement is or should
ever be held to be illegal, invalid, or unenforceable under any present or future law applicable to
the terms hereof, then and in that event, it is the intention of the parties hereto that the remainder
of this Agreement shall not be affected thereby, and that in lieu of each such clause or provision
of this Agreement that is illegal, invalid, or unenforceable, there be added as part of this
Agreement a clause or provision as similar in terms to such illegal, invalid, or unenforceable
clause or provision as may be possible and be legal, valid, and enforceable such that the intention
of the parties is effected as closely as is possible.
Section 9.10. Counterpart Execution. To facilitate execution, this Agreement may be
executed in as many counterparts as may be convenient or required. It shall not be necessary that
the signature of all persons required to bind any party, appear on each counterpart. All
counterparts shall collectively constitute a single instrument. It shall not be necessary in making
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proof of this Agreement to produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, each of the parties hereto.
Section 9.11. Holidays. In the event that the date upon which any duties or obligations
hereunder to be performed shall occur upon a Saturday, Sunday or legal holiday, then, in such
event, the due date for performance of any duty or obligation shall thereupon be automatically
extended to the next succeeding business day.
Section 9.12. Effective Date. The Effective Date of this Agreement shall be the date set
forth on the first page hereof.
IN WITNESS WHEREOF, each party hereto has signed this Agreement or caused this
Agreement to be signed in its corporate name by its officer thereunto duly authorized, all as of
the date first above written.
BUYER: LOWER COLORADO RIVER AUTHORITY
By:_ 4A4w,
Name: RaAdy J. oss, P.E.
Title: Executive Manager, Water and Wastewater
Utilities
SELLER: CITY OF ROUND ROCK, TEXAS
f
By4Rt
Naluka
Title: Mayor
Exhibits Attached Hereto:
Exhibit A- Southwest Interceptor Line and Round Rock South Interceptor Line Assets
Exhibit B - Purchase Price
Exhibit C - Other Encumbrances on Southwest Interceptor Line and Round Rock South
Interceptor Line Assets
Exhibit A
Southwest Interceptor
and Round Rock South
Interceptor
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EXHIBIT A TO AGREEMENT FOR ACQUISITION OF WASTEWATER SYSTEM ASSETS
EXHIBIT B
PURCHASE PRICE
1. Southwest Interceptor Line - $75,319, representing Austin's 44.05% share of Round
Rock's total undepreciated costs of$170,985.25, it being understood that Round Rock's
55.95% share of said costs is being donated by Round Rock so that Round Rock will not
be charged by LCRA for Round Rock's share of its original undepreciated cost of this line.
2. Round Rock South Interceptor Line - $0, because Round Rock's original costs are fully
depreciated.
-14-
EXHIBIT C
PERMITTED ENCUMBRANCES
Prior to Closing on the purchase of the Round Rock South Interceptor Line, LORA, Austin
and Round Rock will execute an appropriate amendment to that certain "Agreement" between
the City of Round Rock and various landowners concerning reservation of capacity in the
Round Rock South Interceptor Line, dated August 15, 1984, as amended by "Addendum to
Agreement," dated that same day, reflecting the division of use of Reserved Capacity in that
line between Round Rock and Austin.
DATE: July 20, 2001, 2001
SUBJECT: City Council Meeting—July 26, 2001
ITEM: 14.E.5. Consider a resolution authorizing the Mayor to execute an Agreement
for Acquisition of Wastewater System Assets (Southwest Interceptor
Line and Round Rock South Interceptor Line) with the Lower
Colorado River Authority. In 1984, Round Rock built a sewer line
which was paid for by several property owners both in and outside
Round Rock's E.T.J. Another collection line has been constructed
through La Frontera to serve a portion.
Resource: Jim Nuse, Public Works Director
History: In 1984, Round Rock built a sewer line which was paid for by several property
owners both in and outside Round Rock's E.T.J. Another collection line has been
constructed through La Frontera to serve a portion.
Funding:
Cost: $ 0
Source of funds:
Outside Resources: LCRA
Impact: Better use of regional sewer system.
Benefit: Improved collection efficiency.
Public Comment: N/A
Sponsor: N/A
LAW OFFICES OF
RONALD J. FREEMAN
PHONE(512)451-6689 2304 Hancock, Suite 6 e-mail TXWATERRES@aol.cosn
FAX(512)453-0865 Austin, Texas 78756 (512)797-6649 MOBILE
July 24, 2001
By Hand Delivery
Madison Jechow
Lower Colorado River Authority
3701 Lake Austin Blvd.
Hancock Building, 4" Floor
Austin, Texas 78703
Re: LCRA, BRA, Round Rock, Austin-Southwest Interceptor and Round Rock South
Interceptor Line Agreements
Dear Madison:
I am enclosing with this letter the following:
1. Two originals of the"Agreement for Acquisition of Wastewater System Assets(Southwest
Interceptor Line and Round Rock South Interceptor Line)" (the"Acquisition Agreement");
and
NY' 2 Four originals of the "Interceptor Line Acquisition Construction and Transportation
Service Contract" (the "Service Agreement").
r
' '. The Acquisition Agreement has been approved by LCRA and is on the Round Rock City
Council's agenda for approval later this month. Accordingly, please have Randy Goss execute
both originals of this agreement and then forward those two originals to Steve Sheets in Round
Rock for execution by Round Rock after approval by its City Council.
The Service Agreement has been approved by LCRA, BRA and Austin. It is scheduled
to be approved later this month by Round Rock. Accordingly, please have Randy Goss execute
all four originals; have those four originals hand delivered to Mike Erdmann at the City of Austin,
who will obtain the signature of the appropriate official from Austin; Mike should then return
them to me, and I will forward them to Mike Field at BRA for obtaining the appropriate signature
from BRA's General Manager. Mike can then forward all four to Steve Sheets so that he can
obtain the signatures of the appropriate representatives of Round Rock after the City Council
approves the agreement later this month.
There is one other agreement being drafted and negotiated which relates to these two
agreements, but it cannot be finalized until such time as the owner of the "Raceway Tract" (a tract
of land served by the Round Rock South Interceptor Line) verifies to Austin who owns the
capacity associated with the Raceway Tract which is dealt with in that third agreement.
r
July 24, 2001
Page 2
Therefore, I am not circulating the third agreement for signature at this time but will do so later.
There is a latest draft of this third agreement which has been received by all parties, and I believe
it will also be approved, in concept, by Round Rock at its Council meeting later this month. Once
that approval is received and the final information needed from Sharlene Collins' client who owns
the Raceway Tract, we will finalize that agreement and circulate it for signature.
Everyone should be made aware that the two agreements being circulated for signature
pursuant to this letter will obviously be executed later this month, but they are dated to be
effective as of July 1, 2001. Once the two agreements enclosed with this letter are executed by
all parties, LCRA intends to close as soon as possible on the acquisition of the "Southwest
Interceptor Line." LCRA will close on the purchase of the"Round Rock South Interceptor Line"
as soon as the third agreement is finalized and executed by the appropriate parties.
The original of this letter is being sent with enclosures to you, Madison. Copies of this
letter (without enclosures) are being sent by e-mail to the parties listed below so that they are
aware of the process for obtaining signatures. If anyone has any questions about this process,
please call me.
Very truly yours,
Qm� Aqj-VWM�
Ronald J. Freeman
RJF.jjs
Enclosure
cc: Jim Clarno
Janet Stephenson
Randy Goss
Mike Erdmann
John Tresnicky
Steve Sheets
Jim Nuse
David Kautz
Michael Field
Sharlene Collins
D
ASSIGNMENT OF EASEMENTS & PERMITS
DATE: July , 2002
ASSIGNOR: CITY OF ROUND ROCK, TEXAS, a home rule city
ASSIGNOR'S MAILING ADDRESS: 221 East Main Street
Round Rock, Texas
ASSIGNEE: LOWER COLORADO RIVER AUTHORITY, a conservation and
reclamation district of the State of Texas
ASSIGNEE'S MAILING ADDRESS: P.O. Box 220
Austin, Texas 78767
CONSIDERATION: Ten dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged
PROPERTY: All of the easements described on Exhibit A attached hereto and
incorporated herein for all purposes.
PROJECT: Brushy Creek Regional Wastewater System
RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE:
All the rights of the underlying fee owners; easements and rights-of-way of
record; all presently recorded restrictions, reservations, covenants, conditions, oil and gas
leases, mineral severances, and other instruments; any other easements, liens, and
encumbrances of record that affect the Property; discrepancies, conflicts, or shortages in
area or boundary lines; and any encroachments or overlapping of improvements.
CONVEYANCE:
Assignor, for the consideration and subject to the above-stated reservations and
exceptions, grants, sells, and conveys to Assignee the Property, together with all and
singular the rights and appurtenances thereto in any wise belonging, to have and to hold
the same to Assignee, Assignee's successors and assigns forever and Assignor does
hereby agree to warrant and forever defend the title to same to Assignee against any other
persons lawfully claiming same by, through or under Assignor,but not otherwise.
Assignor hereby authorizes the use by Assignee of any and all real property,
streets, alleys, public ways and places, and general utility or wastewater line easements of
Assignor for operation and maintenance of the Project.
2/02 1
RR/SW
When the context requires, singular nouns and pronouns include the plural.
City of Round Rock, Texas,
a home rule city
By:
axwe ,Mayor
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on July 1 2002 by Nyle
Maxwell, Mayor of the City of Round Rock, Texas, a home rule city, on behalf of said
city.
#i• �'r; CHRISTINE R.MARTINQ
• FYI
MV COMMISSION EXPIRES Notary Public, State of Texas
August 28,2045
AFTER RECORDING RETURN TO:
Lower Colorado River Authority
P.O. Box 220
Austin, Texas 78767
Attn: M.A. Pace
z/02 2
RR/SW
EXHIBIT A
1. That certain easement in Williamson County, Texas, as granted to the City of
Round Rock, Texas, by Royston Group,Ltd., a Texas limited partnership, dated
February 13, 1986 and of record in Volume 1318, Page 715 of the Official Records of
Williamson County, Texas,pertaining to the real property described therein.
2. That certain easement in Williamson County, Texas, as granted to the City of
Round Rock, Texas,by Gerald Brown, Trustee, dated March 21, 1985 and of record in
Volume 1162, Page 397 of the Official Records of Williamson County, Texas,pertaining
to the real property described therein.
3. That certain easement in Williamson County, Texas, as granted to the City of
Round Rock, Texas, by Leslie M. Forsman, et al, of record in Volume 1123, Page 325 of
the Official Records of Williamson County, Texas,pertaining to the real property
described therein.
4. That certain easement in Williamson County, Texas, as granted to the City of
Round Rock, Texas, by Socrates Retail Joint Venture, a Texas joint venture, dated
September 4, 1996 and of record as Document#9713299 of the Official Records of
Williamson County, Texas,pertaining to the real property described therein. (Part of
South Interceptor Line).
5. That certain easement in Williamson County, Texas, as granted to the City of
Round Rock, Texas,by Dayton Hudson Corporation, a Minnesota corporation, dated
September 10, 1996 and of record as Document#9713298 of the Official Records of
Williamson County, Texas,pertaining to the real property described therein. (Part of
South Interceptor Line).
6. Any and all associated Permits as granted to the City of Round Rock by the State
Department of Highways and Public Transportation crossing I-35.
1
2/02
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BILL OF SALE AND ASSIGNMENT
Date: July 11 2002
Grantor: City of Round Rock,Texas, a home rule municipality
Grantor's Mailing Address(including county):
City of Round Rock,Texas
221 East Main
Round Rock,Texas 78664
Travis and Williamson County
Grantee: Lower Colorado River Authority, a Texas conservation and reclamation district
Grantee's Mailing Address (including county):
Lower Colorado River Authority
P. O.Box 220
Austin,Texas 78767-0220
Travis County
Consideration: Ten Dollars ($10.00) and other good and valuable consideration in hand
paid by Grantee.
Facilities: See Exhibit"A"attached hereto.
Permitted Encumbrances: See Exhibit`B"attached hereto.
Grantor, for the consideration herein expressed, sells, assigns, and transfers to Grantee
the Facilities as described on Exhibit"A".
Reference is hereby made to that certain "Agreement for Acquisition of Wastewater
System Assets (Southwest Interceptor Line and Round Rock South Interceptor Line)" dated
effective July 1, 2001, between Grantor and Grantee ("Agreement") and that certain Assignment
of Easements and Permits" of even date herewith executed by Grantor in favor of Grantee (the
"Assignment"). The covenants, representations and warranty disclaimers set forth in the
Agreement are hereby incorporated herein by reference as if such covenants, representations or
disclaimers were fully set out herein. Grantee acknowledges and agrees that such covenants,
representations and disclaimers, though not set forth herein in full, are applicable and effective
with respect to the conveyance, assignment and transfer evidenced hereby.
Grantor warrants that all of the Facilities are located in easements conveyed by Grantor to
Grantee in the Assignment or in dedicated public utility easements or rights-of-way. Grantor
agrees to indemnify and hold harmless Grantee from any and all claims arising out of any breach
of this warranty.
00030749.DOC
Grantor agrees to hereafter cooperate with Grantee, take such additional actions and
execute such other specific documents as may be necessary or appropriate to accomplish the
transfers contemplated in the Agreement and this document.
When the context requires, singular nouns and pronouns include the plural. References
to defined terms shall refer to those terms as defined in the Agreement.
Executed effective July _,2002.
GRANTOR:
City of Round Rock, Texas,a ho e munici ality
By:
el
Mayor
ACCEPTED:
GRANTEE:
LOWER COLORADO RIVER AUTHORITY
By:
Randy J. Goss,P.E.,Manager
Water and Wastewater Utility Services
00030749.DOC
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on July�, 2002, by Nyle Maxwell, Mayor,
City of Round Rock,Texas,a home rule city,on behalf of said city.
MARTINEZ Notary Public, State of Texas
SSION EXPIRES My Commission Expires:
;,.. S.2005
CHRISTINE R.MARTINEZ
MY COMMISSION EXPIRES
STATE OF TEXAS
August 28,2005
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on July , 2002, by Randy, J. Goss, P.E.,
Manager, Water and Wastewater Utility Services, Lower Colorado River Authority, on behalf of said
conservation and reclamation district.
Notary Public,State of Texas
(SEAL) My Commission Expires:
00030749.DOC
EXHIBIT A
Description of Facilities
Round Rock South Interceptor Line Facilities: Approximately 18,200 linear fee of 15, 18,21 and 24-
inch diameter wastewater interceptor commencing at the abandoned Round Rock Lake Creek Lift Station
and ending at Manhole#49 in Corridor Park approximately 745 linear feet south of Jarrett Way as shown
on the"Construction Plans for South Round Rock Interceptor"prepared by Haynie&Kallman Inc.
Ex.A—Bill of Sale and Assignment—SW Int
EXHIBIT B
Permitted Encumbrances
Prior to Closing on the purchase of the Round Rock South Interceptor Line,LCRA,Austin and Round
Rock will execute an appropriate amendment to that certain"Agreement"between the City of Round Rock
and various landowners concerning reservation of capacity in the Round Rock South Interceptor Line,
dated August 15, 1984,as amended by"Addendum to Agreement,"dated that same day,reflecting the
division of use of Reserved Capacity in that line between Round Rock and Austin.
Exhibit B-Bill of Sale and Assignment—SW Int
AFTER RECORDING RETURN TO:
Lower Colorado River Authority
P.O.Box 220
Austin,Texas 78767-0220
Attn: M. A. Pace
Bill of Sale and Assignment—Round Rock